Anthony Kennedy: We need to solve tough issues through democratic compromise, not through the Supreme Court

posted at 11:21 am on March 7, 2013 by Allahpundit

Granted, he’s speaking in broad philosophical terms here. And granted, the logic of democratic compromise necessarily doesn’t apply if the Equal Protection Clause has been violated. But when the guy whom everyone thinks will be the swing vote on the Court’s big gay-marriage case says something like this — in the heart of the state where Prop 8 was passed, no less — it’s news.

At the very least, if he is inclined to strike down Prop 8, this is an odd message about judicial power to be pushing right now:

U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation’s balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration…

“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”…

The associate justice appointed by President Ronald Reagan has often been the swing vote on split decisions. He said he’s concerned that too many decisions of social and political importance are being shifted to the high court, particularly in an era of “litigation explosion.”

He’s talking there about congressional gridlock, not state governments diverging in their approach to a contentious social issue, but the point about unelected judges deciding democratic disputes applies to both circumstances. Kennedy, in fact, has waxed rhapsodic about state sovereignty and the virtues of federalism in opinions before, most notably the Lopez case from 1995 which struck down a law passed by Congress on grounds that it violated the Commerce Clause(!). Per what he said yesterday in Sacramento, maybe he’s inclined to let the states work through gay marriage on their own. Especially since, per this new bipartisan survey from Freedom to Marry, popular sentiment on the subject is in flux:

Exit polls and other surveys from last year’s election suggest that resistance to same-sex marriage is shrinking and mainly concentrated among certain segments of the population: older people, white evangelical Christians and non-college-educated whites…

The disparity was even greater among religious groups, broken down along racial lines. White evangelical Christians opposed same-sex marriage by nearly 3 to 1. But every non-evangelical group — other white Protestants, white Catholics, Hispanic Catholics, African American non-evangelicals and Jewish voters — expressed support for such unions by double-digit margins.

Meanwhile, African American voters who described themselves as evangelical or born again were narrowly divided, with 45 percent saying their state should recognize same-sex marriage and 47 percent saying it should not.

So maybe there’s a solution here that’ll satisfy both Kennedy’s federalist/democratic impulses and his sympathy for gay rights: Give the public some time to continue wrestling with this issue, since federalism and democracy increasingly are leading to more rights for gays. (Even in California: The same public that enacted Prop 8 now says, to the tune of 61 percent, that gays should be able to marry.) The big caveat on federalism, though, is that the Lopez case dealt with the federal government imposing its authority on the states while gay marriage deals with the state government imposing its authority on the individual, which implicates the Bill of Rights. In fact, just a year after he sided with the states in Lopez, Kennedy wrote the majority opinion in Romer v. Evans striking down a Colorado law that singled out gays to deny them protected-class status. And if, as he said yesterday, he’s worried about the U.S. being an example to the rest of the world, he may well decide that a big Court ruling for gay rights is more important than letting democracy play itself out for another decade or two. But still — any tea leaf coming from him that points to majority rule instead of judicial fiat is an interesting one, especially at this particular moment.

Exit question: How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?

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You commenting on “democratic compromise” is about as ridiculous as JFKY accusing people of “Tea Party drone strike paranoia”: you have absolutely no ****king idea what you’re talking about and are intentionally ignoring evidence to the contrary.

Second look at Barry’s birth certificate, you pompously robed asses? Yes, I am looking at you, Justices Alito, Scalia, and Kennedy. You could save this country a lot of gridlock, pain and, at some later stage, blood.

“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said

America is not a Democracy. We’re supposed to be a Constitutional Republic. The whims of the people are limited in the same manner that the various branches of government are.

That said, the total redefinition of marriage is not a Constitutional issue and the Court has no business even accepting any challenge to refusing to pervert the definition of marriage on Constitutional grounds, regardless of what the whim of the people is.

It’s important to remember that the constitution doesn’t really say who gets to decide what is constitutional. The supreme court just jumped in to fill the void with judicial review. I wouldn’t say judicial review was unconstitutional, I would call it extraconstitutional. I don’t think the framers would have set it up that way originally, remember Madison lost Marbury v. Madison.

How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?

Whether Prop 8 is upheld or struck down, the real issue is going to be the scope of the opinion. Do they keep in narrow and tell California that they did it wrong or do they decide to make broad sweeping statements about all the other same-sex lawsuits and, of course, DOMA?

Kennedy is right in saying that tough problems should be solved through a democratic process. What he fails to acknowledge is that the SCOTUS has done more than their share of harm with rulings such as Roe v. Wade, Kaufman v. McCaughtry (atheism is a religion) or even the way they had to bend the law to uphold Obamacare.

These unjust rulings are ignored to keep the mythology that the court does no harm in their rulings.

Supreme court justices are just other members of the ruling elite. For Kennedy to now decry petitions to the court to solve problems that should be left to the legislature is a bad joke. Recall that he joined Justice O’Connor’s opinion in PP v. Casey that upheld Roe v. Wade and which further advised the “little people” that the court had finally decided the issue and they should shut up and go home.

This could also signal that Kennedy is going to uphold the voting rights act.

red_herring on March 7, 2013 at 11:36 AM

Well if that is the case then the next series of lawsuits is going to demand that all states submit changes in their voting laws and redistricting plans to the Department of Justice. It is inherently unfair in 2013 that Eric Holder gets to decide about Virginia’s new voter ID law or whether or not they’ve adequately districted for minority-majority districts but other states do not have such usurptation of civil rights.

How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?

It doesn’t matter. There is no Constitution anymore. America is dead, replaced by the American Socialist Superstate. If anyone wants to live in an American Constitutional Republic, again, the only way will be through a national divorce and the establishment of a new nation that adheres to the American framework and ideals. After Barky’s criminal, illegitimate, and anti-American tenure and Benedict Roberts mockery of law there’s nothing left in this nation, really. It’s all one big joke. After the historically laughable BarkyCare decision there is no logic or reason behind anything the SCOTASS decides and it is all meaningless.

Meanwhile, African American voters who described themselves as evangelical or born again were narrowly divided, with 45 percent saying their state should recognize same-sex marriage and 47 percent saying it should not.

In 2008 70% of all African American voters in CA voted against gay marriage. Now 4 years later Obama comes out in favor of SSM and it’s split down the middle even among evangelical blacks? I guess we now know which messiah is being worshipped.

…since federalism and democracy increasingly are leading to more rights for gays

AP, why are you buying into the phrasing of the Left? What “rights” are gays denied that others have?

This is why I mourn. When even conservative voices are fretting about “rights” in the context of identity politics, it’s become clear to me that the Left has seized control of our language. With that loss, ala 1984, is the inability to even conceive of concepts the Left doesn’t want you to think about.

Kennedy does not like Obama. His comments are directed more at hoW Team Barry has been trying to game SCOTUS.

Kennedy would normally vote in favor of ghey mirage, but he knows Barry is banking on that, so his instinct is now to oppose. But, he also knows he can’t waltz away from the precedent he’s established.

So Kennedy is pissed to be put in this position, which is why Roberts will bail him out.

Roberts will cave. Expect nothing less. You don’t do pro bono work for LGB causes and then turn against it when you’re at the top position.

It really comes down to how hard Kennedy slams Roberts privately, and how he kowtowing out of fear for his reputation. That might get Roberts to stop at overturning DOMA and saying Prop 8 has to voted on again.

As for the 61% support number in Cali – that’s the power of Presidential shame. He shamed and guilted minority communities to abandoned their beliefs.

What I love about that “narrow and concentrated” poll, is it groups people by how they identify themselves, not if they’re actually practicing their religion.

If 61% of the people who voted to uphold Prop 8 now find SSM acceptable, let them vote and have their voices heard. IMO a judicial ruling will effectively make SSM the new Rowe v Wade. The issue will be a political football for the next 10-20 years.

A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,”

When that happens it is no longer a democracy. Each such decision whittles away at its legitimacy as a “democracy”. And it has been happening for several decades now.

However, when the Legislator tries to ignore the Constitution and pass lass that are of dubious constitutionality that cannot be easily undone there is little recourse and remedy than the courts.

Likewise when the Executive does the same by issuing Executive Orders of questionable constitutionality.

In such cases the Supreme Court must function as a defender of the Constitution and the representative democracy it was supposed to create and maintain. The alternative is a rubber stamp high court such as existed in Germany in the 1930′s. Robert’s mind bending gymnastics and betrayal of the Constitution and the people in upholding the Obamacare mandate is an example of such high court rubber stamping.

While I can make the case for what Kennedy is saying, he should be in favor of upholding Prop 8. Prop 8 was a ballot initiative to change the constitution of California, duly passed, then summarily overturned. If Kennedy is going to take a federalist stance, then he must uphold it (by ruling that it’s the states right to say what they will recognize).

Exit question: How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?

Yeah, well, all you have to do is go the New York Times Linda Greenhouse column today to see that the left has begun the same strategy that was so successul last year: screaming about the legitimacy of the court if it rules the way the left doesn’t like. Concerning Roberts, it reminds me of what David Janssen said in the last episode of The Fugitive back in 1967 when he discovered the body of someone murdered by the elusive one-armed man: “He’s done it once before.”

I just read the headline of this subject again and just had to ask, what the hell is so tough about the issues in terms of the one and only legal question that matters? It either violates someone’s rights or it doesn’t. That’s hard for YOU Mr. Kennedy?

If the equal protection clause covers gay unions then why doesn’t it cover three siblings joining in a “union” to care for their ailing parents in order to get the “equal protection of the law” in supporting their family?

If the civil union is just a vehicle through which the government hands out benefits that everyone should have equal access to then why is the union a requirement? Doesn’t this discriminate against those who don’t want to be in a union?

Why do I have to wait until I’m old to access Social Security and Medicare? I don’t have equal access.

What are the income tax implications of gay marriage? Will the marriage penalty apply? Will Obama favor gay marriage as a way of closing a ‘tax loophole’?

meci on March 7, 2013 at 11:50 AM

In the same budget where Governor Quinn of Illinois talks about cutting aid to education because of lack of funds, he pushes for same sex marriage which will add another layer of benefits to new “spouses” (at a high cost to the state.) It’s like they have no idea about all the unintended consequences of all this social engineering… Social Security survivor benefits, the cost to American businesses (and religious institutions) to comply, state and municipal governments’ health insurance and other benefits to all the new spouses and other dependents. It will not be long before people learn to game the system (there will be more who ask for benefits than actually self-identify as “gay”.) It will add another layer to the redistributive practices currently in place.

The United Nations has issued the United States a stern warning against a state trend to legalize marijuana, for recreational or medical use: Doing so violates international law. The International Narcotics Control Board, the global body in charge of overseeing drug treaties, issued a warning about the “unprecedented surge” in “legal highs” — those that stem from medically approved marijuana use — and said immediate action is needed to stop the trade, The Guardian reported. The group also warned the U.S. government to crack down on medicinal marijuana laws.

There is more than a bit of irony in this story … revenge of the “‘One-World’er nuts”

You conservatives with your “institutions and traditions that made a America great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America great and exceptional.

You don’t seem to have this problem when discussing free markets and entrepenourial spirit. You somehow are able to see how new, healthy, and free markets can keep America great (me too) but, when it comes to our culture and the “American way” it’s as if you’ve concluded that all that can be invented has been invented.

Intellectual honesty and integrity of principle in government and in general does not require cultural and emotional integration amongst our institutions and traditions in order to maitain an exceptional society.

And rather frightening that even 1-world-gov’t, ultraliberal fruitloops see that legalizing drugs is a bad idea. Sweden learned the hard way, and I fear we shall have to.

MelonCollie on March 7, 2013 at 12:16 PM

I would never do mj, and I would never vote to make mj legal. But this problem should not be addressed at a national level, let alone international. Each state needs to define what is legal and what isn’t at the state level. I would like to see all 50 states declare it illegal, but if they don’t, that is their citizen’s rights to determine.

You conservatives with your “institutions and traditions that made a America great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America great and exceptional.

beselfish on March 7, 2013 at 12:29 PM

Not a single one of your precious “new institutions and traditions” has been anything but an abject failure. From the Great Society debacle (which completely destroyed the black family) to pervert marriage to Blowjob Clintoon’s idea of foreign policy.

This could also be an indication about Shelby County, the section 5 voting rights act case. The government’s position that section 5 is constitutional rested in part on the fact that it was unanimously passed by congress

You conservatives with your “institutions and traditions that made a America great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America great and exceptional.
beselfish on March 7, 2013 at 12:29 PM

You conservatives with your “institutions and traditions that made a AmericaRussia great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America Russia great and exceptional.

beselfish on March 7, 2013 at 12:29 PM

You conservatives with your “institutions and traditions that made a AmericaGermany great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America Germany great and exceptional.

beselfish on March 7, 2013 at 12:29 PM

You conservatives with your “institutions and traditions that made a AmericaChina great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America China great and exceptional.

beselfish on March 7, 2013 at 12:29 PM

You conservatives with your “institutions and traditions that made a AmericaCuba great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep AmericaCuba great and exceptional.

Intellectual honesty and integrity of principle in government and in general does not require cultural and emotional integration amongst our institutions and traditions in order to maitain an exceptional society.

(Even in California: The same public that enacted Prop 8 now says, to the tune of 61 percent, that gays should be able to marry.)

Says who? I know of no one in GULAG who voted for Prop. 8 and then changed his/her mind since. Polls should never be used in political discussions, the only “polls” that count are ACTUAL VOTES. Let’s stop relying on liberal propaganda disguised as “polls”.

You conservatives with your “institutions and traditions that made a America great” mantra apparently blind yourselves to the possibility that new institutions and traditions can keep America great and exceptional.
beselfish on March 7, 2013 at 12:29 PM

Lots of things have been tried and failed throughout history. Look at where we are relative to other nations with regard to prosperity and freedom. What you’ll see is that Western, and in particular American, institutions and traditions are the ones that have been the most successful ever. If you want to start messing with that, you’d better have some darn good arguments based on empirical evidence for why what you want to replace them with will work better. And won’t be a repeat of or fall to a similar fate as one of the countless things that have been tried and failed throughout history.

Intellectual honesty and integrity of principle in government and in general does not require cultural and emotional integration amongst our institutions and traditions in order to maitain an exceptional society.

beselfish on March 7, 2013 at 12:29 PM

You’ve come to this conclusion based on what evidence, exactly? Your feelings? Yeah. I’m convinced.

Just-Us Roberts suffers the same corrupting egomania as Ogabe. Thus Just-Us Roberts is willing to bastardize the Constitution and enslave The People for a cheap power thrill just as Ogabe is willing to kill Americans with drones for same.

Funny thing…they all know war is coming…the Marxists want it, the others are afraid of it.
The Constitution and the Republic survives or it doesn’t.
In the end, the People will decide what is Constitutional.
SCOTUS

Whether Prop 8 is upheld or struck down, the real issue is going to be the scope of the opinion. Do they keep in narrow and tell California that they did it wrong or do they decide to make broad sweeping statements about all the other same-sex lawsuits and, of course, DOMA?

Personally I would be shocked if SCOTUS gave an expansive ruling striking down DOMA and Prop 8. The most I expect is for the Justices to punt on Prop 8 (the issue of standing gives them the easiest “out”) and maybe strike down Section 3 of DOMA. I’d love a more expansive ruling for the short term but I just don’t see it happening and if I can take a step back to look at the bigger picture, it’s probably better in the long run if they don’t.

Kennedy is right in saying that tough problems should be solved through a democratic process. What he fails to acknowledge is that the SCOTUS has done more than their share of harm with rulings such as Roe v. Wade, Kaufman v. McCaughtry (atheism is a religion) or even the way they had to bend the law to uphold Obamacare.

Happy Nomad on March 7, 2013 at 11:37 AM

Kelo v. City of New London. NEVER forget their bungling of Kelo. The most explicitly unconstitutional ruling IMO since…well, probably Plessy v. Ferguson.

If 61% of the people who voted to uphold Prop 8 now find SSM acceptable, let them vote and have their voices heard.

Should Prop 8 be upheld by SCOTUS, possible but unlikely IMO since I think the Justices will punt on the issue, expect such a move within a year or so.

IMO a judicial ruling will effectively make SSM the new Rowe v Wade. The issue will be a political football for the next 10-20 years.

msmveritas on March 7, 2013 at 11:51 AM

It’s already been a “political football” for 10-20 years, depending upon when you wish to start counting, and given the number of states without SSM probably will remain so for 10-20 if SCOTUS doesn’t completely strike down DOMA. As for a ruling striking down DOMA being akin to Roe v. Wade, that I seriously doubt. It would lack the emotional pull for many that Roe has in their seeking to defend life.

Exit polls and other surveys from last year’s election suggest that resistance to same-sex marriage is shrinking and mainly concentrated among certain segments of the population: older people, white evangelical Christians and non-college-educated whites…

BULLSHIT!

California has TWICE voted to restrict the use of the word “married” to those of the opposite sex.

‘Same sex marriage’ has won approval in state legislatures, not in popular state-wide voting.

I’d say property rights and rule of law had more to do with American exceptionalism than traditions and institutions.

beselfish on March 7, 2013 at 3:55 PM

I’d say the word “marriage” is the intangible property of heterosexual couples…just as “Tiffany” belongs to Tiffany’s. If my name was Tiffany and I started a jewelry store and wanted to name it “Tiffany’s” and use blue boxes etc., how fast do you think the real Tiffany’s would use the rule of law to shut me down? How fast did they shut down Costco for selling “Tiffany” rings?

Marriage doesn’t have a copyright or trademark after it because it precedes those “rules of law”.

Ah. But those are traditional American values as well. Ones that are being eroded, I might add.

besser tot als rot on March 7, 2013 at 4:25pm

agreed, they are values but they’re not born of tradition. They follow from inalienable rights- you know, Tom Jefferson and the founders said that.

Anyway, i was referring more to the institution of marriage, religion in America, the military. And traditions like 4th of July celebrations, Christmas, Baseball and apple pie. Certainly these have been part of American exceptionalism. My thought is they are an outgrowth of a society, at the very least, because they do not contradict the founding principles. Many of those institutions and traditions, of course, are more than that. Can other institutions grow out of founding principles or at least become part of society while not contradicting our precious founding? I think so. Why close the door on that possibility?

Our traditions and institutions, though lovely and wonderful, are not primary. There’s always room for more as long as our founding stay intact. If we are vigilant in the protection of our individual rights, i think traditions and institutions that become part of our society will necessarly compliment and buttress our principles.

I prefer to be ruled by people that screw underage foreign prostitutes, pass countless lawa and regulations that exempt themselves, steal trillions from our kids and grandkids in future debts and liabities, travel around the world to 5 star resorts on the ruling serfs dime and screw us over with crony capitalism and buying votes from welfare queens and illegal aliens.

He’s right, but probably too late with his realization. The SCOTUS let that horse out of the barn when it decided Roe v. Wade, and allowed itself to be used to achieve political ends. That turned the court into a third political branch and began the era of “Borking.” That’s not the kind of thing that will be easy to reverse.

He’s right, but probably too late with his realization. The SCOTUS let that horse out of the barn when it decided Roe v. Wade, and allowed itself to be used to achieve political ends. That turned the court into a third political branch and began the era of “Borking.” That’s not the kind of thing that will be easy to reverse.

flataffect on March 7, 2013 at 10:23 PM

And the smiling chief Constitutional traitor, Chief Justice John Roberts, made it all the worse when he rewrote “penalties” as “taxes” in his legislation from the bench.

Exit question: How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?

Hmm… magic 8-ball says: Ask again later

The Lochner post got elgeneralisimo thinking though…

If marriage = consensual and contractual relationship recognized by law…

… But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.’ Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U.S. 549, 565 , 262…

It seems to me that Kennedy’s comment was a classic restatement of a fundamental conservative principle which should indeed guide questions involving the reach of the federal courts, and of the scope of federal court jurisdiction — their power to act.

The federal court system is the least democratic of our basic institutions, and, therefore, was never intended to, and should not be acting to resolve major policy dispute after policy dispute, as it is currently being asked to do.

Justice Kennedy is right.

In fact, the entire lower federal court system (Court of Appeals on down) was an entirely legislatively created institutional framework, originally established via the Judiciary Act of 1789, pursuant to the provision of Article III, section 1, to wit:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
. . . .
(my emphasis supplied)

Only the United States Supreme Court itself was expressly established by the Constitution. Marbury v. Madison, by the way, involved a direct petition to the the Supreme Court to resolve a matter which the petitioner claimed arose under the Court’s original jurisdiction.

The decision in Marbury v. Madison merely established an important precedent of judicial review regarding the constitutionality of Acts of Congress.

The irony for Marbury was that, though the Supreme Court readily recognized his “right” to his Commission, nevertheless the specific provision of the Judiciary Act of 1789 which Marbury believed provided a basis for him to pursue his commission — by allowing him to seek a Writ of Mandamus to petition the Supreme court directly — was found by the Court to have been an attempt to grant greater original jurisdiction to the Supreme Court than had been expressly provided for in the Constitution itself. And it was on that basis that the provision was declared unconstitutional. Marbury’s claim was defeated via the manner in which Marbury had sought to pursue it.

So, even though President Jefferson won the political fight (by not having a member of his Administration, i.e., Sec’y of State James Madison, judicially compelled to deliver the “midnight” commission that had been given to Marbury by outgoing President Adams), the President still squawked about the reach of the Court’s decision in declaring a provision of an Act of Congress unconstitutional.

That case in no way anticipated the day to day management and resolution of political questions that are regularly put to the federal courts these days.

Finally, for better or worse — and others will no doubt continue to argue the merits thereof — we have to some extent modified the original republican framework to make it more democratic, most specifically I would argue through the adoption of the 17th amendment to the Constitution, providing for the direct election of United States Senators.